The United States Supreme Court has formally struck down President Donald Trump’s Executive Order (“EO”) 14160 restricting birthright citizenship.
By a 6-3 vote, the Court held that the long-settled understanding of the 14th Amendment, which was adopted after the American Civil War, holds that anyone born on American soil is a natural U.S. citizen with very few exceptions.
The Supreme Court’s decision comes after a series of setbacks from federal judges at the district and circuit court levels that began immediately after President Trump signed the EO hours after he was sworn in as the 47th President.
Writing for the majority, Chief Justice John Roberts commented “[C]itizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land. We keep that promise today.”
Chief Justice Roberts, known as a conservative justice, was joined by the three liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Amy Coney-Barrett, a conservative who was appointed at the end of the first Trump administration also voted with the majority.
While disagreeing with the constitutionality of the ruling but ultimately siding with the majority based on federal law, Justice Brett Kavanaugh wrote a separate opinion stating that Congress could, consistent with the 14th Amendment, enact new legislation which would establish more exceptions for birthright citizenship but Congress has not done so yet.
Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the 14th Amendment does not automatically grant citizenship to children born within the United States. In his dissenting opinion, Justice Thomas, who was appointed to the Supreme Court in 1991 by President George H.W. Bush wrote that the Court ignored evidence of debates during the Reconstruction Era which followed the American Civil War and suggested that citizenship depended on a deeper relationship to the country.
“The Citizenship Clause was enacted for people who were born in this country and called it home. It was enacted for freed slaves such as Dred Scott, who had ‘a domicile’ here and therefore were entitled to sue as citizens,” wrote Thomas.
“In my view, the Citizenship Order is not facially unconstitutional,” Thomas wrote, referring to Trump’s Executive Order. “The Order is consistent with the original meaning of the Citizenship Clause, at least insofar as it applies to children born to parents, here lawfully or unlawfully, who are not domiciled in the United States.”
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